December 13, 2011

San Francisco, CA -- A coalition of advocates and public officials filed an amicus 'friend of the court' brief yesterday, asking the California Supreme Court to take the appeal of Pack v. City of Long Beach, a controversial decision from early October. The coalition, which includes Americans for Safe Access (ASA), the American Civil Liberties Union (ACLU), the Drug Policy Alliance (DPA), as well as the County of Santa Cruz, is also seeking outright depublication of the Second District ruling.
The Long Beach City Council decided in November to appeal the Pack decision to California Supreme Court.

Advocates claim the Pack decision, which held that certain provisions of the Long Beach ordinance were preempted by federal law, is not final and has been widely misinterpreted by localities across California in hurried bids to ban distribution and crackdown on existing facilities regardless of their compliance with state law. "The Pack ruling contradicts three other appellate court decisions that have rejected federal preemption, indicating this fight is far from over," said ASA Chief Counsel Joe Elford, co-author of the amicus brief filed today. "We stand today in support of Long Beach and other cities' right to regulate medical marijuana distribution under state law."

Two published decisions from the Fourth District Court of Appeal -- County of San Diego v. San Diego NORML and Qualified Patients Association v. City of Anaheim -- and another from the Second District in City of Riverside v. Inland Empire Patient's Health and Wellness Ctr., Inc. have all held that California's medical marijuana law is not preempted by the federal Controlled Substances Act (CSA). In June, coalition members ASA, ACLU and DPA filed a brief before the Pack court arguing against federal preemption, but it was disregarded.

Yesterday's amicus brief argued that the Pack court got it wrong and the Long Beach ordinance was "well within the scope of the government’s historical police powers as it concerns criminal law enforcement, medical practices, and land use." The amicus brief also asserted that by holding the ordinance preempted by federal law, the Pack court "gave the CSA greater preemptive effect than Congress intended or that the 10th Amendment allows," and "significantly undermined the authority of state and local governments to regulate in these critical areas."

"The Pack court did not entirely invalidate the Long Beach ordinance or any other dispensary ordinance in California," continued Elford. "The ruling is also contradicted by other appellate courts, which should give localities pause before changing or rescinding their dispensary ordinances. The Pack court held that parts of the licensing scheme enacted by the City of Long Beach -- specifically provisions that granted permits through a lottery system at a significant, recurring fee -- are preempted by federal law. However, the court made a distinction between a licensing scheme and an ordinance that would merely protect such facilities against local civil or criminal prosecution, leaving open the possibility that Long Beach could comply with the court’s decision simply by making certain changes to its ordinance.

The California Supreme Court is expected to decide whether to review and/or depublish the Pack decision by spring of 2012.